June 15, 2021 Article

Six Take-Aways from EEOC’s Updated COVID-19 Guidance

The U.S. Equal Employment Opportunity Commission ("EEOC") published guidance in December 2020 advising how EEO laws, including the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act, apply during the time of the COVID-19 pandemic. This guidance was recently updated.

While there continue to be areas of uncertainty, and it is unclear how the guidance might evolve or change based on the CDC's recommendations for fully vaccinated individuals issued on May 13, 2021, there are several noteworthy take-aways for employers to be aware of:

  1. Vaccination and Pregnancy
    EEOC indicates that employees who are not vaccinated due to pregnancy may be entitled to modifications or adjustments that allow them to continue working if the employer makes modifications or exceptions for other employees. The modifications afforded to pregnant employees may be the same as those made for employees based on disability or religion. Job modifications may include telework, changing work schedules or assignments, or leave to the extent that these modifications are provided to other employees who are similar in their ability or inability to work. Employers should verify that supervisors, managers, and HR personnel know how to handle these types of requests and are aware of the risk of disparate treatment issues.
     
  2. Accommodating Fully Vaccinated Employees
    What is required if a fully vaccinated employee requests an accommodation for an underlying disability because of a continued concern regarding COVID-19 infection? EEOC advises that employers who receive reasonable accommodation requests from employees should process the requests as would be done in any other situation by engaging in the interactive process to determine if there is a disability-related need for reasonable accommodation. This process may include seeking information from the employee's health care provider with the employee's consent to better understand why the accommodation is needed. If there is a disability-related need for an accommodation, the employer must explore whether there are reasonable accommodations that may be provided absent undue hardship. For example, employers should be cognizant of the fact that some individuals who are immunocompromised may still require reasonable accommodations because the vaccine may not afford them the same level of protection as other vaccinated individuals.
     
  3. Vaccine Incentives
    There has been great consternation over whether employers may incentivize vaccination. EEOC's updated guidance confirms that employers may, in fact, offer these incentives. EEOC explains that requesting documentation confirming that an employee received a COVID-19 vaccine is not a disability-related inquiry under the ADA. Thus, offering incentives to employees who provide this proof is allowed and does not run afoul of the disability-related inquiry rules. That said, employers must keep vaccination information confidential under the ADA.

    Similarly, employers may incentivize participation in employer administered vaccination programs so long as the incentive is not "so substantial as to be coercive." The rationale is that vaccinations require employees to answer pre-vaccination screening questions. If the employer offers a large incentive, employees may feel pressured to disclose protected medical information. These concerns are not at issue, however, if the employer offers the incentive to employees who voluntarily provide documentation confirming that they received the vaccine from a third-party provider.
     
  4. Employee Family Members
    EEOC explains that under the Genetic Information Nondiscrimination Act ("GINA"), employers may not offer incentives to employees in exchange for a family member's receipt of a vaccine from the employer or the employer's agent because the pre-vaccine screening questions would elicit medical information about the family members and thus would result in the employer learning genetic information about the employee (i.e., family medical history). Under the GINA regulations, employers are prohibited from offering incentives in exchange for genetic information. Employers may still offer an employee's family member an opportunity to be vaccinated by the employer or its agent if steps are taken to ensure GINA compliance. For instance, the employer must ensure that all medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees. Written authorization is also required.
     
  5. Disparate Impact
    EEOC confirms that the federal EEO laws do not prevent employers from requiring employees who physically enter the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA. EEOC cautions, however, that apart from these issues, vaccination requirements would be unlawful if application of such a requirement results in employees being treated differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason. Employers should also keep in mind that some demographic groups may face challenges in receiving a COVID-19 vaccine or may be more likely to be negatively impacted by a vaccine requirement.
     
  6. Impact of FDA Emergency Use Authorization on Vaccine Mandates
    While the EEOC has received many inquiries from employers and employees about the type of authorization granted by the U.S. Department of Health and Human Services Food and Drug Administration (the three available vaccines were granted "Emergency Use Authorization"), it is beyond EEOC's jurisdiction to discuss legal implications associated with the type of authorization and how it may be related to employer mandated vaccine programs. Commentators on the subject appear to agree that private sector employers may require at-will employees to be vaccinated, subject to the requirement that reasonable accommodations may be required for medical or religious reasons.  And at least one court has rejected a challenge to a vaccine  mandate on these grounds.  Last week a federal court in Texas dismissed a lawsuit brought by healthcare employees challenging the vaccine mandate imposed by their employer.  See Bridges, et al. v. Houston Methodist Hospital, et a., No. H-21-1774 (S.D. Texas June 12, 2021). The employees say that they will appeal the ruling.

EEOC's updated guidance can be reviewed here.

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